Contributed by Andrew Brookes, Anthony Gold
A year on from the Grenfell Tower disaster the Inquiry is under way, and many specialists in social housing tenant law are involved. While the issues most relevant to our expertise will not be explored until Phase 2 of the Inquiry, the fall-out from Grenfell continues to be felt more widely. Social housing providers have come under financial pressure, not only for the direct cost of removing and replacing cladding on high-rise buildings, but more generally as fire safety has rightly moved up the agenda. The issue of who pays for the extra costs is both a political and a legal one. Leaseholders in particular are looking anxiously to see whether costs will be passed on to them. In the social housing sector, with rent levels capped or subject to an enforced reduction by central government, there is little money available for social housing providers to provide even a basic service to their tenants. Tenants can expect harsher action to be taken over arrears and a poorer service on repairs and maintenance. This will no doubt keep practitioners busy over the next year.
On the subject of rent arrears there is the ongoing slow-motion introduction of Universal Credit. Causing misery to individual tenants and increased arrears for social housing providers, the rollout of Universal Credit will surely remain one of the key issues for those advising social housing tenants over the next twelve months. It remains to be seen whether some of the changes recently announced by the government will ease the pain.
On a day-to-day level many practitioners are preparing for the introduction of new legal aid contracts from the autumn of 2018. At the time of writing providers are going through the lengthy verification process. The whole procedure has highlighted the lack of experienced housing supervisors sufficiently qualified to pass the Legal Aid Agency thresholds. Those qualified as supervisors have suddenly found themselves in high demand. The shortage is a reflection of both the high demand for housing advice and the underfunding of the sector over decades.
The government itself is finally carrying out its long-awaited review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), and practitioner groups are pushing for the reintroduction of legal aid funding to cover such obvious gaps as advice on housing benefit/Universal Credit to tenants threatened with possession proceedings. There was a collective cheer from practitioners when the Law Centres Network took a successful judicial review of the Legal Aid Agency’s decision to introduce price-competitive tendering and fewer contracts for the Housing Possession Court Duty Scheme. This vital service provides unrepresented litigants with advice and representation at court when faced with possession proceedings. Over the years thousands of tenants have been saved from eviction in courts all over the country. Evictions, particularly of vulnerable tenants and families, only end up costing the state more further down the line. It is therefore difficult to see how the Legal Aid Agency’s proposals made economic sense. The court agreed in the most trenchant terms and found that the decision to introduce the scheme was one that no reasonable decision-maker could reach on the evidence.
With rented housing now such a hot political issue it is not surprising that housing law reform and changes to housing law continue apace. When the Renting Homes (Wales) Act comes into force it will radically alter housing law in Wales and make the legal landscape very different from England. Currently in a consultation phase, it will make the types of tenancy which can be granted in Wales very different from England. In England, the Homelessness Reduction Act came into force in early 2018. In theory this should extend the duties of local authorities to prevent homelessness. In practice little extra funding has been made available and it will be up to those who represent homelessness applicants to make sure the Act means something in practice.
In further law reform, the Homes (Fitness for Human Habitation) Bill, originally a private member’s bill, was adopted by the government. This will enhance the rights of tenants by giving them the right to a property fit for habitation and a way of enforcing that right. Hopefully by this time next year it will be in force.
With the right to buy for housing association tenants seemingly on hold for the moment, the government’s focus for legislative change remains on the private sector. Over the last year there have been small further improvements to tenant protection, for example with the requirement to provide a compliant Energy Performance Certificate showing a specified standard. The government has now announced a consultation on yet more changes including a possible extension to assured shorthold tenancies to a three-year term. If that was introduced it would represent the single biggest change to private sector tenancies since the Housing Act 1988.
Although growth in the social housing sector has tailed off, with the increase in the number of housing association tenancies barely keeping up with the decline in the number of council homes, the private rented sector has continued to grow. Many of those so-called private sector rented homes were once social housing now bought under the right to buy, and it is now artificial to differentiate between social housing and private rented housing. With owner occupation declining, younger people in particular having to rent and practitioners struggling with the perennial problems of legal aid funding, there has never been a greater need for good-quality, specialist advice.